93 Decision Citation: BVA 93-14543
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-50 025 ) DATE
)
)
)
THE ISSUE
Entitlement to service connection for psychiatric disability.
REPRESENTATION
Appellant represented by: Melba N. Rivera Camacho, Attorney
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
William W. Berg, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1943 to March
1946.
In March 1980, the Board of Veterans' Appeals (Board) denied the
veteran's claim of entitlement to service connection for
psychophysiologic reaction, musculoskeletal system.
This matter came before the Board on appeal from a September 1989
rating decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in San Juan, Puerto Rico, denying the veteran's request to
reopen claims of entitlement to service connection for back and
psychiatric disabilities. The notice of disagreement with this
determination was received in October 1989. The statement of the case
was issued in January 1990. In his substantive appeal, which was
received in February 1990, the veteran requested a hearing at the RO.
A personal hearing was held before a hearing officer at the RO in
August 1990, and the hearing officer issued an unfavorable
determination the following month.
The appeal was received and docketed at the Board in November 1990.
In a decision issued in March 1991, the Board upheld the RO's denial
of the veteran's request to reopen his claims for service connection
for back and psychiatric disabilities. The veteran filed an appeal to
the United States Court of Veterans Appeals (Court), and the Court
issued an order affirming the Board's decision with respect to the
back issue. However, the Court found that evidence added to the
record since the Board denied service connection for a psychiatric
disorder in March 1980 was new and material. The Court therefore
reopened the claim and remanded the issue of service connection for
psychiatric disability to the Board for consideration of this claim in
light of the veteran's hearing testimony and in light of the other
evidence of record. The Court directed that the Board issue a new
decision in compliance with the requirement for reasons and bases
contained in 38 U.S.C.A. § 7104 (West 1991) and in compliance with the
benefit of the doubt doctrine contained in 38 U.S.C.A. § 5107(b) (West
1991). [citation redacted].
REMAND
In his hearing testimony at the RO in August 1990, the veteran
asserted that he had the initial onset of a nervous disorder following
his embarrassment and humiliation by his service
comrades and superiors after they learned that he had contracted a
venereal disease. His service medical records reveal that the veteran
was treated in November 1944 for an acute episode of gonorrhea.
A review of the entire record shows that the service medical records
are negative for specific findings of an acquired psychiatric
disorder. However, in October 1944, the veteran was hospitalized with
complaints of recurrent joint pain in both knees, both elbows and both
shoulders of about six months' duration. He also complained of heart
palpitations on exertion or when excited of three months' duration and
complained of occasional mild precordial pain and shortness of breath.
The veteran was returned to duty after 10 days of hospitalization, and
his complaints were described as an ill-defined condition of the
cardiovascular system manifested by palpitation, precordial pain and
shortness of breath without objective findings of heart disease.
In August 1945, he was seen for complaints of a neck injury two
months' previously, which was asymptomatic until a couple of weeks
previously, when a dull pain was noted in the muscles of the neck.
The impression was myositis. A separation examination in March 1946
was negative for any pertinent psychiatric abnormality.
Following service, the veteran was hospitalized by VA in September
1951 for gastrointestinal symptoms that were ultimately attributed to
organic disorders. In May 1952, the veteran was hospitalized at a VA
facility, and it was found that he was very prompt to become nervous
and had spells of an uncontrollable desire to cry. His symptoms
appeared to be situational in nature. The pertinent diagnosis was
chronic mild anxiety reaction. Thereafter, the veteran was seen on a
number of occasions by both VA and non-VA examiners for psychiatric
complaints variously diagnosed as anxiety neurosis or reaction;
functional aerophagia; psychophysiologic reaction, aggravated by
cervical arthrosis; psychophysiologic reaction, musculoskeletal
system; nonpsychotic organic brain syndrome with cerebral
arteriosclerosis; depressive neurosis with anxiety features; chronic
depression manifested through multiple somatizations; affective
disorder; and, when examined at a VA mental hygiene clinic in November
1987, general anxiety disorder versus somatoform disorder. A private
psychiatric evaluation for the Puerto Rico Industrial Commission in
March 1977 found that the veteran had been suffering from chronic
depression since 1951, but the representative at the hearing in August
1990 contended that the veteran's symptoms in 1951 were the same as,
or similar to, those manifested in service in 1944.
VA has a duty to assist the veteran in the development of facts
pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R.
§ 3.103(a) (1992). The Court has held that the duty to assist
includes the duty to obtain adequate and contemporaneous VA
examinations, as well as examinations by a specialist when indicated.
Littke v. Derwinski, 1 Vet.App. 90 (1990); Hyder v. Derwinski,
1 Vet.App. 221 (1991). In light of the veteran's history and in view
of the numerous psychiatric diagnoses, we are of the opinion that
further evidentiary development, as specified below, is warranted.
Accordingly, the case is REMANDED to the RO for the following actions:
1. The RO should contact the veteran, through
his representative, and request that he provide
the names and addresses of VA and non-VA health
care providers who have treated him for his
psychiatric complaints since separation from
service, as well as the approximate dates of
treatment. After obtaining any necessary
authorization, the RO should attempt to obtain
copies of those treatment records identified by
the veteran which have not been previously
secured.
2. Then, the veteran should be afforded a VA
examination by a board certified psychiatrist to
determine the nature and extent of any
psychiatric disability found to be present. All
indicated tests should be performed. It is
requested that the examiner provide an opinion
as to the approximate date of onset of the
earliest manifestations of any chronic acquired
psychiatric disability found to be present. The
examiner should provide a complete rationale for
all opinions and conclusions expressed. It is
imperative that the claims folder and a copy of
this REMAND order be provided to the examiner
prior to the examination.
3. Thereafter, in light of the evidence
obtained pursuant to the requested development,
the RO should readjudicate the claim for service
connection for psychiatric disability in light
of all the evidence of record, both new and old,
and without regard to the finality of the March
1980 Board decision.
If the veteran disagrees with the decision of the RO, and if otherwise
appropriate, a supplemental statement of the case should be issued,
and the veteran and his representative should be provided an
opportunity to respond. Thereafter, the case should be returned to
the Board for further consideration, if otherwise in order. By this
REMAND, the Board intimates no opinion as to any final outcome
warranted. No action is required of the veteran until he is notified
by the RO.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
JOHN J. CASTELLOT, SR., M.D. SHANE A. DURKIN
ROBERT E. SULLIVAN
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of Veterans
Appeals. This remand is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1992).